HKSAR v. Ho Wai Ho

DCCC 226/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 226 OF 2017

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REASONS FOR SENTENCE

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1.In this case the defendant Ho Wai Ho is convicted of one count of “Trafficking in a Dangerous Drug”, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 upon his plea and admission of facts.

2.The facts reveal that sometime later on 28 December 2016, the defendant was intercepted by police officers in Shun Tin Estate, Sau Mau Ping.  Upon search they found 25 small transparent resealing plastic bags, each containing white tablets on his person.

3.Under caution, the defendant admitted that he knew that those were cocaine and that he was selling them at someone’s request in order to settle a gambling debt.  He told the police officers that the drugs were collected at a fire hose somewhere in Sau Mau Ping Estate.  He was supposed to ask for $700 for two packets.  He would be given $1,500 as a reward for the sale.

4.The Government Laboratory and government chemist confirmed that the 25 plastic packets contained a total of 5.31 grammes of a solid containing 4.76 grammes of cocaine. The total street value was about $22,000.

5.Trafficking in dangerous drugs has been rampant and has been recognised to be a very serious offence.  There is a very clear and undisputed line of authorities starting from Lau Tak Ming [1990] 2 HKLR 370 which set out the proper sentence for offences of this kind.  The guideline in Lau Tak Ming has since been adopted for the purpose of trafficking in heroin and cocaine.

6.The defence very fairly conceded that the present quantity of 4.67 grammes of cocaine falls within the bracket of “Up to 10 grammes”, warranting a term of imprisonment of 2 to 5 years.

7.In this case, the court takes into account of the large number of packets involved and the circumstances of his arrest and his admission.  I also note that what he told the police does not contain any information on which the police could carry out further investigation.  This is not an aggravating factor but this does not constitute extenuating circumstances either.

8.From the facts, I do not see any valid reasons for which the court could exercise its limited discretion of leniency.  I would therefore adopt 3 years as a starting point. 

9.I turn to consider mitigations submitted on behalf of the defence.  From the information available, I have been told that the defendant was aged 16 at the time of the offence.  He came from a single-parent family and was working as a logistics worker, making about $500 a day.  It is not the first time that he was in trouble with the law.  I note that in the year 2010 and 2014, he had been arrested for the offence of theft and claiming to be a member of triad society respectively.  He was not formally charged and the matter was dealt with as SP discretion.  So, technically, he had a clear record.

10.The other matter I need to consider is his youth.  In any other offences, the age of the offender was to have the result of persuading the court in adopting a different sentencing principle, namely from one of deterrence to that of rehabilitation.  Yet, in the case of trafficking in dangerous drug, it has been pointed out by the Court of Appeal repeatedly that youth is not a reason to be lenient for the simple reason that if it was, it would indirectly encourage the real traffickers to take advantage of the young people by employing them to do the deed for them.  Since trafficking in dangerous drug is a serious offence and the main principle for sentencing is one of deterrence, youth normally should not be a relevant matter in considering a sentence.  Again, defence counsel has fairly conceded that this be the case and would not seek to persuade this court to consider other option.

11.Again I need to point out that this court is aware of the requirement although for that, for sentencing young offenders, the court must be satisfied that there are no other means of dealing with him before considering a term of imprisonment.  So in any other case, the court would invariably call for probation officer’s report and reports from other institutes for young offenders, but for reasons already stated, in the present case, the only proper sentence will be one of imprisonment.  So I decide to dispense with calling for further reports. 

12.I have considered the background of the defence and also all the mitigation submitted on your behalf.  I am satisfied that there are no other matters which would justify exercise of discretion in his favour.

13.The only valid mitigation in this case is the fact that he pleaded guilty.  He will be accorded with the usual one‑third deduction.  Therefore, he is now sentenced to 24 months’ imprisonment.